1. MANAGING FOOD ALLERGIES IN SCHOOL: Legal and Practical Considerations By: Regan K. Dahle

2. What Is a Food Allergy? An interaction between food and the immune system. An interaction between food and the immune system. An allergic reaction occurs when an individuals immune system recognizes a particular food protein as a foreign invader by releasing histamine and other chemicals. An allergic reaction occurs when an individuals immune system recognizes a particular food protein as a foreign invader by releasing histamine and other chemicals.

3. Most Common Food Allergens Peanuts Peanuts Fish Fish Tree Nuts Tree Nuts Milk Milk Eggs Eggs Soy Soy Wheat Wheat Shellfish Shellfish Sesame allergies are on the rise.

4. Typical Allergy Symptoms Hives Hives Swelling Swelling Cramps Cramps Nausea Nausea Vomiting Vomiting Diarrhea Diarrhea Itchy, watery eyes Itchy, watery eyes Shortness of breath Shortness of breath Coughing Coughing Wheezing Wheezing Runny Nose Runny Nose Reduced Blood Pressure Reduced Blood Pressure Fainting Fainting Shock Shock Feeling of Impending Doom Feeling of Impending Doom

5. Anaphylaxis A sudden, severe allergic reaction that involves various areas of the body simultaneously or causes difficulty breathing with swelling of the throat and tongue. A sudden, severe allergic reaction that involves various areas of the body simultaneously or causes difficulty breathing with swelling of the throat and tongue. In extreme cases, it can cause death. Also called a general reaction or allergic shock. In extreme cases, it can cause death. Also called a general reaction or allergic shock.

6. Why Should Schools Be Concerned? According to a recent study in the Journal of School Nursing, 84% of children with food allergies will have a reaction at school, and 25% of children have their first reaction at school. According to a recent study in the Journal of School Nursing, 84% of children with food allergies will have a reaction at school, and 25% of children have their first reaction at school. As little as a milligram of an offending food can cause a life-threatening allergic reaction. As little as a milligram of an offending food can cause a life-threatening allergic reaction.

7. Why Should Schools Be Concerned? Anaphylactic reactions can result in death if untreated or under-treated. Anaphylactic reactions can result in death if untreated or under-treated. Anaphylactic symptoms can develop in minutes after eating an offending food. Anaphylactic symptoms can develop in minutes after eating an offending food. Some researchers now believe that even minute exposures to the allergen that may not cause a reaction can caused increase sensitivity. Some researchers now believe that even minute exposures to the allergen that may not cause a reaction can caused increase sensitivity.

8. Why Should Schools Be Concerned? Fatalities from anaphylaxis most often are associated with either not using epinephrine or delay in the use of epinephrine. Fatalities from anaphylaxis most often are associated with either not using epinephrine or delay in the use of epinephrine. There is no cure or preventative medication for food allergies. There is no cure or preventative medication for food allergies. Avoidance is the only way to prevent a reaction from occurring. Avoidance is the only way to prevent a reaction from occurring.

9. Legal Framework

10. Federal Legislation

11. Section 504 Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability. Applies to institutions receiving financial assistance from the federal government, including public schools. Applies to institutions receiving financial assistance from the federal government, including public schools. Ensures that qualified students with disabilities receive a free and appropriate public education. Ensures that qualified students with disabilities receive a free and appropriate public education. 34 CFR §104.33

12. What Is a Disability? A physical or mental impairment that substantially limits one or more of an individuals major life activities. A physical or mental impairment that substantially limits one or more of an individuals major life activities. Having a record of such an impairment. Having a record of such an impairment. Being regarded as having such an impairment. Being regarded as having such an impairment. 34 CFR §104.3(j)

13. Is a Life-Threatening Food Allergy a Disability? Under the Section 504 definition, food anaphylaxis should be considered a physical impairment since it is a physiological condition that affects multiple body systems. 34 CFR §104.3(j) Under the Section 504 definition, food anaphylaxis should be considered a physical impairment since it is a physiological condition that affects multiple body systems. 34 CFR §104.3(j)

14. Is a Life-Threatening Food Allergy a Disability? Breathing and eating are major life activities. Breathing and eating are major life activities. 34 CFR 104.3(j) 34 CFR 104.3(j) Lawson v. CSX Transp., Inc., 245 F.3d 916 (7th Cir. 2001)

15. Is a Life-Threatening Food Allergy a Disability? No Michigan court has addressed whether an individual with life-threatening food allergies is substantially limited in any major life activity. No Michigan court has addressed whether an individual with life-threatening food allergies is substantially limited in any major life activity.

16. Is a Life-Threatening Food Allergy a Disability? In a case involving an individual with diabetes who, like an individual with life- threatening food allergies also had significant restrictions on his ability to eat, the Seventh Circuit articulated well why the issue of substantial limitation would be, at the very least, a jury question: In a case involving an individual with diabetes who, like an individual with life- threatening food allergies also had significant restrictions on his ability to eat, the Seventh Circuit articulated well why the issue of substantial limitation would be, at the very least, a jury question:

17. Mr. Lawson's physician characterized the measures he must take to manage his disease as "a perpetual, multi-faceted and demanding treatment regime" requiring "continued vigilance. If Mr. Lawson fails to adhere strictly to this demanding regimen, the consequences could be dire: he could experience debilitating, and potentially life-threatening, symptoms. This evidence is sufficient for a jury to find that Mr. Lawson is substantially limited with respect to the major life activity of eating. Lawson v. CSX Transp., Inc., 245 F.3d 916, 924 (7th Cir. Ind. 2001)

18. Federal Government Acknowledges Allergies as Disability Allergies may be considered a hidden disability similar to diabetes and epilepsy. Allergies may be considered a hidden disability similar to diabetes and epilepsy. U.S. Dept. of Ed. Office of Civil Rights, Pamphlet: The Civil Rights of Students with Hidden Disabilities under Section 504 of the Rehabilitation Act of 1973 U.S. Dept. of Ed. Office of Civil Rights, Pamphlet: The Civil Rights of Students with Hidden Disabilities under Section 504 of the Rehabilitation Act of 1973

19. Federal Government Acknowledges Allergies as Disability The Department of Agriculture has identified students with life-threatening food allergies as disabled under Section 504 of the Rehabilitation Act. The Department of Agriculture has identified students with life-threatening food allergies as disabled under Section 504 of the Rehabilitation Act. USDA Guidance for School Food Service Staff: Accommodating Children with Special Dietary Needs in the School Nutrition Program USDA Guidance for School Food Service Staff: Accommodating Children with Special Dietary Needs in the School Nutrition Program

20. What Does it Mean to Provide a Free and Appropriate Education? Parents cannot be charged for services necessary for the education of the disabled child, unless other students are also charged. 34 CFR §104.33 Parents cannot be charged for services necessary for the education of the disabled child, unless other students are also charged. 34 CFR §104.33 Unless it can be demonstrated that the child cannot receive a satisfactory education, disabled students must be educated with non-disabled students. 34 CFR § 104.34 Unless it can be demonstrated that the child cannot receive a satisfactory education, disabled students must be educated with non-disabled students. 34 CFR § 104.34

21. What Does it Mean to Provide a Free and Appropriate Education? Disabled students must have equal access to educational opportunities and extracurricular activities to the maximum extent appropriate. Id. Disabled students must have equal access to educational opportunities and extracurricular activities to the maximum extent appropriate. Id. Students with food allergies should not be excluded from the cafeteria. Students with food allergies should not be excluded from the cafeteria.

22. What Does it Mean to Provide a Free and Appropriate Education to a Student with Food Allergies? They generally should not be denied access to the school bus or on field trips. They generally should not be denied access to the school bus or on field trips. Accommodations may need to be made in classroom, lunchroom, during recess, etc., so the student can safely be educated with non-disabled students. Accommodations may need to be made in classroom, lunchroom, during recess, etc., so the student can safely be educated with non-disabled students.

23. 504 Enforcement Mechanisms Individuals may file a complaint with the Dept. of Ed. Office of Civil Rights. 34 CFR § 100.7 Individuals may file a complaint with the Dept. of Ed. Office of Civil Rights. 34 CFR § 100.7 Failure to comply could result in suspension of federal funds or legal proceedings brought by the Dept of Justice. 34 CFR §100.8 Failure to comply could result in suspension of federal funds or legal proceedings brought by the Dept of Justice. 34 CFR §100.8

24. 504 Enforcement Mechanisms Violations of Section 504 can result in private civil actions against District. 29 U.S.C. §794(a) Violations of Section 504 can result in private civil actions against District. 29 U.S.C. §794(a) Eleventh Amendment immunity does not apply. 42 U.S.C. § 2000d-7 Eleventh Amendment immunity does not apply. 42 U.S.C. § 2000d-7

25. 504 Plans Written agreement developed for a particular student that specifies the aids the school will provide to that student so that the student gets equal and safe access to educational opportunities and extracurricular activities. Written agreement developed for a particular student that specifies the aids the school will provide to that student so that the student gets equal and safe access to educational opportunities and extracurricular activities.

26. 504 Plan Should Address... School bus School bus Classroom Classroom Substitutes Substitutes Special classes Special classes Lunchroom Lunchroom Recess Recess

27. 504 Plan Should Address Medication storage Medication storage Parent volunteers Parent volunteers Bathrooms Bathrooms Playground Playground Drinking fountain Drinking fountain Assemblies Assemblies Field Trips Field Trips

28. IDEA Individuals with Disabilities Education Act, 20 USC §1400 et seq. Individuals with Disabilities Education Act, 20 USC §1400 et seq. Generally supports students whose disabilities affect their ability to learn. Generally supports students whose disabilities affect their ability to learn.

29. IDEA Qualified students are entitled to an Individualized Education Program that addresses the special services to be provided to the student. Qualified students are entitled to an Individualized Education Program that addresses the special services to be provided to the student. Less common that a food allergy would be covered by IDEA since the students ability to learn is not typically affected, but possible if the restrictions on the students activities are extensive enough or if the child has other impairments. Less common that a food allergy would be covered by IDEA since the students ability to learn is not typically affected, but possible if the restrictions on the students activities are extensive enough or if the child has other impairments.

30. ADA - Americans with Disabilities Act Ensures that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. Ensures that no qualified individual with a disability shall be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 42 USC § 12132

31. Americans with Disabilities Act School must provide reasonable modifications to rules, policies or practices and auxiliary aids and services to ensure that the disabled student is not excluded, denied services, segregated or otherwise treated differently than a non-disabled student. School must provide reasonable modifications to rules, policies or practices and auxiliary aids and services to ensure that the disabled student is not excluded, denied services, segregated or otherwise treated differently than a non-disabled student. 28 CFR § 35.104

32. Americans with Disabilities Act No Eleventh Amendment immunity from ADA claims. 42 USC § 12202 No Eleventh Amendment immunity from ADA claims. 42 USC § 12202 Violation of the ADA can result in a private civil action, administrative agency complaints, as well as the loss of federal funding. 42 USC § 12133 Violation of the ADA can result in a private civil action, administrative agency complaints, as well as the loss of federal funding. 42 USC § 12133

33. Harassment Concerns Both federal and state laws prohibit harassment of individuals who exercise their rights under these statutes. Both federal and state laws prohibit harassment of individuals who exercise their rights under these statutes. Required accommodations can often be unpopular with staff, students and other families. Required accommodations can often be unpopular with staff, students and other families. Staff should be cautioned against conduct that could be considered threatening, harassing or discriminatory against a student or the students family. Staff should be cautioned against conduct that could be considered threatening, harassing or discriminatory against a student or the students family. Staff should be advised to monitor for and report any teasing or bullying of the food-allergy student. Staff should be advised to monitor for and report any teasing or bullying of the food-allergy student.

34. Food Service USDA, National School Lunch Program and School Breakfast Program regulations require that schools make substitutions to regular meals when a student cannot eat the regular meal because of a disability. USDA, National School Lunch Program and School Breakfast Program regulations require that schools make substitutions to regular meals when a student cannot eat the regular meal because of a disability. Substitutions or modifications must be based on a valid prescription. Substitutions or modifications must be based on a valid prescription. Substitutions or modifications must be at no extra cost to the student. Substitutions or modifications must be at no extra cost to the student. 7 CFR § 15b

35. Michigan Legislation

36. Public Schools Duty to Provide a Safe Environment The public schools of this state serve the needs of the pupils by cooperating with the pupils parents and legal guardians to develop the pupils intellectual capabilities and vocational skills in a safe and positive environment. The public schools of this state serve the needs of the pupils by cooperating with the pupils parents and legal guardians to develop the pupils intellectual capabilities and vocational skills in a safe and positive environment. MCL §380.10

37. Revised School Code Section 1179 Students may possess and use epinephrine at school or school-sponsored event under the following conditions: Students may possess and use epinephrine at school or school-sponsored event under the following conditions: –Student has written approval from both physician and parent/guardian –The principal has received a copy of the written approvals –Student has an Emergency Care Plan on file.

38. Emergency Care Plan Contains specific instructions on students needs. Contains specific instructions on students needs. Prepared by a physician in collaboration with the student and parent/guardian. Prepared by a physician in collaboration with the student and parent/guardian. Updated as necessary for changing circumstances. Updated as necessary for changing circumstances.

39. Food Allergy Action Plan

41. Revised School Code, Section 1178 A designated school employee who, in good faith, administers medication to a student in a life-threatening, emergency situation, is not liable in a criminal action or for civil damages, except in the event of gross negligence or willful or wanton misconduct. A designated school employee who, in good faith, administers medication to a student in a life-threatening, emergency situation, is not liable in a criminal action or for civil damages, except in the event of gross negligence or willful or wanton misconduct.

42. Gross Negligence Conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results. Conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.

43. Willful or Wanton Misconduct Where there is an intent to harm or, in circumstances in which injury is probable, there is such indifference to whether harm will result. Where there is an intent to harm or, in circumstances in which injury is probable, there is such indifference to whether harm will result.

44. Governmental Immunity Immunity may be available for tort liability if the employee reasonably believes he or she is acting within the scope of his or her authority; the district is engaged in the exercise or discharge of a governmental function; and the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. Immunity may be available for tort liability if the employee reasonably believes he or she is acting within the scope of his or her authority; the district is engaged in the exercise or discharge of a governmental function; and the employee's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. MCL § 691.1407

45. Persons with Disabilities Civil Rights Act Prohibits discrimination by educational institutions. MCL § 37.1402 Prohibits discrimination by educational institutions. MCL § 37.1402 Follows similar analysis as ADA claims. Follows similar analysis as ADA claims. Affords aggrieved individuals a private cause of action as well as administrative remedies. MCL § 37.1605 Affords aggrieved individuals a private cause of action as well as administrative remedies. MCL § 37.1605

46. Proposed Legislation Both federal and Michigan legislators have introduced bills into their respective houses regarding managing food allergies in school. Both federal and Michigan legislators have introduced bills into their respective houses regarding managing food allergies in school. Current proposed amendments to the ADA may also affect analysis of food allergy issues. Current proposed amendments to the ADA may also affect analysis of food allergy issues.

47. Food Allergy and Anaphylaxis Management Act Versions in both the United States House and Senate. Versions in both the United States House and Senate. Currently in House and Senate Committees. Currently in House and Senate Committees. H.R. 2063 and S.1232 H.R. 2063 and S.1232

48. Food Allergy and Anaphylaxis Management Act Would require the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage food allergies and anaphylaxis in schools and make it available to local educational agencies. Would require the U.S. Secretary of Health and Human Services to develop a voluntary policy to manage food allergies and anaphylaxis in schools and make it available to local educational agencies.

49. State of Michigan House Bill 5052 Sponsored by Representative Fran Amos. Sponsored by Representative Fran Amos. Introduced on July 24, 2007. Introduced on July 24, 2007. Currently before Committee on Education. Currently before Committee on Education.

50. House Bill 5052 Would require the Department of Education, in conjunction with the Departments of Agriculture and Community Health, to do the following: Would require the Department of Education, in conjunction with the Departments of Agriculture and Community Health, to do the following: –Review and revise as necessary all guidelines and policies published by the Department of Education and other state agencies involving life-threatening food, insect sting, latex or other substance allergies and asthma. –Provide school districts a model local policy concerning the management of these allergies and asthma.

51. House Bill 5052 Model Policy would address the following: Model Policy would address the following: –Training –Storage of medication –Standardized Emergency Care Plans –Individual Health Care Plans for students with life-threatening allergies

52. Creating a Safe Environment for Students with Food Allergies Requires a Team Approach

53. Parents Notify the school. If possible, for a new student, the year before the student starts. Notify the school. If possible, for a new student, the year before the student starts. Provide medical documentation. Provide medical documentation. Coordinate preparation of the Food Allergy Action Plan with the students doctor, the school nurse, administration and the teacher. Coordinate preparation of the Food Allergy Action Plan with the students doctor, the school nurse, administration and the teacher.

54. Parents Provide appropriate medication and enough of it. Monitor expiration dates of medication and replace when necessary. Provide appropriate medication and enough of it. Monitor expiration dates of medication and replace when necessary. Provide safe food for the student. Provide safe food for the student. Educate and advocate. Educate and advocate. Provide current emergency contact information. Provide current emergency contact information.

55. Teachers Know the symptoms of an allergic reaction. Know the symptoms of an allergic reaction. Keep information about the student readily accessible to substitutes. Keep information about the student readily accessible to substitutes. Ensure that lesson plans involving food are safe. Ensure that lesson plans involving food are safe. Limit the use of food as rewards or for celebrating special events. Limit the use of food as rewards or for celebrating special events.

56. Teachers Know how to administer epinephrine. Know how to administer epinephrine. Avoid cross contact or contamination in the classroom. Avoid cross contact or contamination in the classroom. Teach tolerance in the classroom. Teach tolerance in the classroom. Create class awareness. Create class awareness.

57. School Nurse Educate everyone with whom the student will come in contact. Educate everyone with whom the student will come in contact. Develop an emergency treatment plan for treatment at the school. Develop an emergency treatment plan for treatment at the school. Create an emergency plan of action in the event 911 needs to be called. Create an emergency plan of action in the event 911 needs to be called.

58. School Nurse Check medication for expiration dates. Check medication for expiration dates. Meet with parents. Meet with parents. Meet with the student. Meet with the student. Develop the Individualized Health Plan or 504 Plan where appropriate. Develop the Individualized Health Plan or 504 Plan where appropriate.

59. Principal Create a food allergy management plan for your school. Create a food allergy management plan for your school. Educate staff. Educate staff. Set the tone that this is a significant health issue that will be taken seriously. Set the tone that this is a significant health issue that will be taken seriously. Develop and support policy limiting the use of food as rewards or for celebration. Develop and support policy limiting the use of food as rewards or for celebration.

60. How is Michigan Doing? Study found that Michigan public schools lacked structured, school-wide approach to managing food allergies. Study found that Michigan public schools lacked structured, school-wide approach to managing food allergies. Avoidance strategies were deficient. Avoidance strategies were deficient. Lack of Emergency Action Plans. Lack of Emergency Action Plans. Epinephrine not easily accessible. Epinephrine not easily accessible. Annals of Allergy, Asthma and Immunology, Vol. 86, 172-176

61. We Never Had to Do This Before, So Why Now? Prevalence of allergies is increasing at an alarming rate, and specifically life-threatening allergies. Prevalence of allergies is increasing at an alarming rate, and specifically life-threatening allergies. Data suggests that even minute exposures to allergens can increase sensitivity and the risk of a life-threatening reaction. Data suggests that even minute exposures to allergens can increase sensitivity and the risk of a life-threatening reaction. As research and advocacy progress, treatment and avoidance techniques are developed and refined. As research and advocacy progress, treatment and avoidance techniques are developed and refined. Power in numbers. Families are no longer afraid to advocate for the rights of their children. Power in numbers. Families are no longer afraid to advocate for the rights of their children.

62. Questions? Regan K. Dahle Butzel Long dahle@butzel.com